Mr. Palanisamy vs The State of Tamilnadu

K. Chandru, J.—The petitioners are all Teachers. Some of them have got retired 5 to 6 years back. The present prayer of the petitioners

was to direct the State Government to sanction and award forthwith Selection Grade and Special Grade to the petitioners in the post of Primary

School Headmaster by reckoning and computing the petitioners'' service rendered during the period from early 1979 to late 1979 and in the post

of Primary School Headmaster for the subsequent period.

The cause of action for the petitioners to approach this Court as stated in the affidavits is that the Government had issued G.O.Ms. No. 234,

School Education Department dated 10.9.2009, wherein and by which 63 Teachers were given similar benefit. Therefore, the petitioners should

also be given such benefits. Nowhere in the affidavit, the petitioners have stated as to why they never approached the court or the Tribunal at an

earlier point of time with reference to their service grievance, if at all there was any grievance. They cannot place their right on the basis of the so-

called orders passed by the Government in G.O.Ms. No. 234, School Education Department dated 10.9.2009.

The circumstances under which the said Government Order came to be passed is set out in the G.O. The G.O itself very categorically states that

the benefit will only be available to 63 Teachers, who have filed cases before the Tamil Nadu Administrative Tribunal. The order of the Tamil

Nadu Administrative Tribunal came to be challenged before a Division Bench of this Court. The Division Bench dismissed the Writ Petition.

Therefore, the order of the Tamil Nadu Administrative Tribunal became final. Merely because the Government had chosen to implement certain

orders of the Tribunal or court, that by itself will not give a cause of action to the petitioners to move the Court that too after three decades

regarding their so-called service grievance.

The learned Counsel for the petitioner placed reliance upon the judgment of the Supreme Court in Dr Santosh Kumari (Mrs) Vs. Union of India

(UOI) and Others, . Emphasis was placed on paragraph 8 of the order. That was a case relating to admission to a Medical College. The Supreme

Court held that once the law is laid down, then the persons who came to court alone cannot be granted the relief as that will cause injustice to more

deserving candidates not being admitted. It is not clear as to how the said judgment has any application to the facts of the present case.

On the contrary, the Supreme Court in Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, has held that merely because the

Government had chosen to implement a wrong order which became final, that by itself will not give any cause of action to the other persons

without deciding the issue on merit. It is therefore necessary to extract para 26 of the judgment and it reads as follows:

A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is

barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on

account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and

the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting

subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the

position would be viewed differently, if petitioners plead and prove that the State had adopted a ''pick-and-choose'' method only to exclude

petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor

the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted.

Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-

2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-

2001.

Very recently, the Supreme Court in a case in Shanti Sports Club and Anr. v. Union of India and Ors. reported in 2009 AIR SCW 6953 after

referring to all the previous case laws has held that no court shall issue such a mandamus on the specious plea of either discrimination or they were

unequally treated. It is necessary to extract the following passage found in paragraphs 50 to 52, which read as follows:

The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because

they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically

placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different

functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court

a copy of notification dated 6.9.1996 issued u/s 48(1) was produced, but the said assertion and notification were not sufficient for recording a

finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article

14 was on the appellants. It was for them to produce concrete evidence before the Court to show that their case was identical to other persons

whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or

extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been

subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government''s decision to withdraw from the

acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating

the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This

being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the

land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of

the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to

give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in

another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of

an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same

irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for

perpetuating irregularities or illegalities. In Chandigarh Administration and another Vs. Jagjit Singh and another, , this Court made a lucid exposition

of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A,

Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause,

the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief

Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted

and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was

dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did

not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991.

Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government

to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ

petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt. Prakash Rani, the Administrator had

restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:

We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is

unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at

a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly

situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person

might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If

the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that

such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass

another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because

the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality

over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the

Court should direct the appropriate authority to correct such wrong orders in accordance with law ​ but even if it cannot be corrected, it is difficult

to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning

the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas

would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of

course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given

to the petitioner if it is found that the petitioner''s case is similar to the other person''s case. But then why examine another person''s case in his

absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and

convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to

enquire into the correctness of the order made or action taken in another person''s case, which other person is not before the case nor is his case.

In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High

Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has

been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary

to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and

actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the

precedents, as understood in the judicial world.

Similar is the ratio of the judgments in Narain Das and Others Vs. The Improvement Trust, Amritsar and Another, , Gursharan Singh and

others etc. Vs. New Delhi Municipal Committee and others, , Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan

Garg v. State of Rajasthan and Ors. (supra), State of Haryana and Others Vs. Ram Kumar Mann, , M/s. Faridabad Ct. Scan center Vs. D.G.

Health Services and others, , M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, , State of Bihar and Others Vs. Kameshwar

Prasad Singh and Another, , Union of India (UOI) and Another Vs. International Trading Co. and Another, , Ekta Shakti Foundation Vs. Govt. of

NCT of Delhi, , Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K. Bhalla Vs. State of M.P. and Others, , National Institute of

Technology, Jamshedpur and Others Vs. Chandra Shekhar Chaudhary, , Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh, , State of

Kerala and Others Vs. K. Prasad and Another, , Punjab State Electricity Board and Others Vs. Gurmail Singh, and Panchi Devi Vs. State of

Rajasthan and Others, .

Before concluding, we consider it necessary to enter a caveat. In all developed countries, great emphasis has been laid on the planned

development of cities and urban areas. The object of planned development has been achieved by rigorous enforcement of master plans prepared

after careful study of complex issues, scientific research and rationalisation of laws. The people of those countries have greatly contributed to the

concept of planned development of cities by strictly adhering to the planning laws, the master plan etc. They respect the laws enacted by the

legislature for regulating planned development of the cities and seldom there is a complaint of violation of master plan etc. in the construction of

buildings, residential, institutional or commercial. In contrast, scenario in the developing countries like ours is a substantially different. Though, the

competent legislatures have, from time to time, enacted laws for ensuring planned development of the cities and urban areas, enforcement thereof

has been extremely poor and the people have violated the master plans, zoning plans and building regulations and bye-laws with impunity. In last

four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorized constructions

and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and

those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls

etc., in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In

most of the cases of illegal and unauthorized constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the

influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory

provisions, master plan etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions

and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The

people belonging to this class do not realize that the constructions made in violation of the relevant laws, master plan or zonal development plan or

sanctioned building plan or the building is used for the purpose other than the one specified in the relevant statute or the master plan etc., such

constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage etc. apart from creating chaos on the roads.

The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the

society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types,

asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the government has to spend on

the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and

chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings

constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no

relief should be given to the violator of the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on

the ground that he has spent substantial amount on construction of the buildings etc. - Shri K. Ramadas Shenoy Vs. The Chief Officers, Town

Municipal Council, Udipi and Others, , Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. Vs.

Radhey Shyam Sahu and Others, , Friends Colony Development Committee Vs. State of Orissa and Others, (8) SCC 733, M.C. Mehta Vs.

Union of India (UOI) and Others, and S.N. Chandrashekar and Another Vs. State of Karnataka and Others, .

It must also be noted that in the present cases, the petitioners have sent representations some time in October 2009 only. The question whether

such belated representations can be directed to be considered by courts came up for consideration by the Supreme Court in C. Jacob v. Director

of Geology & Mining and Anr. reported in 2008 AIR SCW 7233, wherein the Supreme Court held that by giving such a direction to consider the

representation, a stale cause of action can never be revived. It is relevant to refer paragraphs 6 to 8 of the said judgment.

Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two

decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold

on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High

Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally,

there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an

application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The

Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without

examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that

every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does

not involve any ''decision'' on rights and obligations of parties. Little do they realize the consequences of such a direction to ''consider''. If the

representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason

of the direction to ''consider''. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference

to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made

for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain

such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this

manner, the bar of limitation or the laches gets obliterated or ignored.

Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or

barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the

department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department.

Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a

fresh cause of action or revive a stale or dead claim.

When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the

matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the

claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some

kind of ''acknowledgment of a jural relationship'' to give rise to a fresh cause of action.

Apart from these contentions, some of the petitioners represented by other counsels had also contended that the question of delay and latches

will not arise in these cases, since it involves issue relating to pay and allowances, there is a continuing cause of action. Further the relief if granted

will not affect the rights of the others. They placed reliance upon the judgment of the Supreme Court in Ramchandra Shankar Deodhar and Others

Vs. The State of Maharashtra and Others, . Reliance was placed upon the following passage found in para 10 and it reads as follows:

The first preliminary objection raised on behalf of the respondents was that the petitioners were guilty of gross laches and delay in filing the

petition. The divisional cadre of Mamlatdars/Tehsildars were created as far back as November 1, 1956 by the Government Resolution of that

date, and the procedure for making promotion to the posts of Deputy Collector on the basis of divisional select-list, which was a necessary

consequence of the creation of the divisional cadre of Mamlatdars/Tehsildars, had been in operation for a long number of years, at any rate from

April 7, 1961, and the Rules of July 30, 1959 were also given effect to since the date of their enactment and yet the petitioner did not file the

petition until July 14, 1969. There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and

this delay, contended the respondents, was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We

do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire

into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable

rule that whenever there is delay, the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question,

as pointed out by Hidayatullah, C.J., in Tilokchand Motichand v. H.B. Munshi1 ''is one of discretion for this Court to follow from case to case.

There is no lower limit and there is no upper limit.... It will all depend on what the breach of the fundamental right and the remedy claimed are and

how the delay arose.

Further reliance was also placed on the decision of the Supreme Court relating to Union of India and Ors. v. Tarsem Singh reported in (2008) 8

SCC 648. Emphasis was made on the following passage found in para 7. The said passage may be extracted below:

To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a

writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases

relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in

seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of

injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected

several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For

example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third

parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of

laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to

recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a

period of three years prior to the date of filing of the writ petition.

It is also stated that earlier order of the Tribunal was upheld by an order of this Court. It had become final and implemented by the

Government. The order of the Tribunal is judgment in rem and the benefit must go to all similarly placed persons. An unreported decision was also

produced in W.P. Nos. 29644 and 29645 of 2003 dated 21.2.2008. But, there the Division Bench dealt with order passed by the Tribunal in

Original Application relating to the year 1997. But the petitioners have chosen to come 12 years after these petitions. The decision relied on by the

petitioners do not help the case of the petitioners. In fact, it goes against the contentions made by them.

The validity of the above prayers made by the writ petitioners seeking the benefit akin to the Teachers covered by the Government Order or

for reviving the cause of action after three decades can never be countenanced by this Court. Hence, all the Writ Petitions stand dismissed. No

costs.